A Fresno Mediator’s Observations On Effective Negotiations Skills and Techniques In A Mediation: Things your client should know for a mediation--Timing issues
You have prepared your client for mediation with the basics. You told him the location, explained what a mediator does, and told him you are going to try to settle the case. For lawyers, that is a mediation in a nutshell. You have done hundreds of mediations. However, this is likely your client's first and only mediation.
I have found clients who know what to expect from mediation (the good and the bad) tend to fair better and increase their chances of settling. We will discuss the basics ever so briefly, and then focus on the things attorneys gloss over, which may be very helpful to your client at his mediation.
THE BASICS OF PREPARING THE CLIENT FOR MEDIATION
I recommend when preparing a client for mediation: Assume nothing.
As attorneys, we know the mediator is a local attorney who is neutral, whose only goal is to settle the case, and who will keep all discussions confidential. However, the clients do not.
Break down everyone's role, especially the mediator's involvement. Let the client know about opposing counsel, the mediator is the neutral, and that your role is a "counselor"at the mediation; if the case does not settle then you can become an advocate, as we discussed in my post: Why A Mediator Can Help You Negotiate Better.
Plus, let the client know everyone who is expected to attend. Maybe a former business partner will be there in the partnership dispute. Giving your client the heads-up will allow him to emotionally prepare himself. By limiting surprise, you limit stress and increase the likelihood of a meaningful mediation. Depending on the client's sophistication with the legal system, you should go through the nature of negotiations, responding to opening offers/demands, the give-and-take, mediator proposals, bracketing possibilities, the negotiation strategies that the other side may use, etc.
Good attorneys go over the basics. However, more and more I see clients ignorant of the finer points of the mediation process, which can derail a mediation.
TOPIC TO ADDRESS IN PREPARING FOR MEDIATION: TIME INVOLVEMENT
Time plays a crucial role in mediation, so make sure you address it with your client. I cannot count how many mediations did not resolve a matter because someone had to catch a flight at noon, or was late because of traffic, or more often, did not realize the amount of time it was taking to settle the case.
Logistics timing issues (e.g. must leave at 3pm for a flight) should be resolved at a Pre-Mediation Conference with the Mediator.
The more important issue will be the amount of time needed for a mediation. An experienced attorney should advise his client of the realistic amount of time it will take to settle his case, the likely rhythm of the mediation, such as joint session, opening remarks, breaks, etc. I understand, not every case is a 16 hour marathon. However, even the clear liability $15,000/$30,000 rear-end car accident can take four to five hours, given insurance adjusters, undefined medical liens, difficult clients, Medi-Cal involvement, etc. I have seen clients (and attorneys) expect a case to settle in two hours, and when it does not, they become frustrated, then irritated, then angry, then unable to settle.
When preparing the client for mediation, you should address with your client these timing issues:
Plan for the whole day (so if you get out early, it's a bonus)
Explain that the mediator may be in the other room for over an hour. This is normal and for the client not to feel offended or disrespected.
Detail why the process takes so long will give your client perspective
Create reasonable expectations on the time involved and necessary to settle your case
So why does it take so long to settle a case?
Many factors are at play that can delay a case. The obvious reasons include multiple parties or multiple issues that need addressing. However, there are numerous factors that are not easily seen that require more time:
1. Trading of information
Relaying of new (and sometimes old) information at mediation delays matters. Many times, the parties have not completed discovery or flushed out their case. So during the mediation, they send information back and forth, which significantly delays the mediation process because we are focusing on information relays, versus the goal of mediation--Negotiations. Don't get me wrong, trading information at mediation is important, sometimes vital, but it consumes time because each party must digest the new information.
One way to expedite this trading of information is with a Joint Session. At these sessions, the parties efficiently provide information, share documents, and relay their positions or exchange mediation brief. If you are under a time crunch, tell your mediator you would like a joint session and discuss sharing of mediation briefs.
2. Uncertainty in what they want
Many parties do not know what they want from a mediation. Sure, they want the case "settled" or "want to get paid" but those vague notions are not actionable, and when presented with a formal and detailed offered, the client is paralyzed. Then, the mediator, counsel, and client must work through the offer/demand, the implications, a response, and then a counter offer/demand. This takes time.
To alleviate this, go over, in detail, what the client must have, would like to have, and will never have before arriving at the mediation. The more detail the better, because the offers/demands will be detailed. This can be address with your meeting with the client about his Needs/Wants/Would Like/Never Going To Get/Doesn't Care About List, discussed later.
3. Emotional reactions
As detailed in other posts, emotions are at play. When someone feels like they have been injured or hurt and the defense offers $1,000.00, the party gets angry. If a Plaintiff sues a Defendant who now has spent thousands of dollars in attorneys and hours in time away from work over a "frivolous" claim, the parties get worked up.
As a mediator, every offer/demand relayed causes an emotional impact.
I see it every time.
Sometimes, a small reaction, such as an eye-roll. Sometimes, it's an expletive-laden tirade and packing of briefcases. Each time, I (and every other mediator) has to talk the other side down from the metaphorical "emotional cliff." Even with the eye roll, we need to calm them down, get them thinking of the implications of the offer/demand, and then formulate a reasonable response.
This takes time.
In fact, the other side would not want me to relay the other's party's initial reaction. It surely will be detrimental to the negotiations. Sometimes a relayed-offer or demand, can take twenty minutes for the other side to work through, process, and decide on an action. Do this several times, and you are mediating through lunch.
4. Coming to grips that the fight is over
The litigants have been fighting the good fight for likely years, usually even longer than their counsel. They likely have had sleepless nights, numerous arguments/discussions with spouses or family, and have vexed about it for months and likely longer. They may have demonized the other side, convinced themselves they are being "wronged," or they need to "punish" the other side for making them go through litigation. I have heard it all. What it tells me is that the litigant might not be ready to hang up the gloves.
When parties (especially those embroiled in emotional legal battles, such as partnership dissolutions, property disputes, etc) reach the end, they are not sure they are ready to settle. Usually, it's not because they want to keep fighting, but rather they must come to grips the fight is over. They will wrestle with questions like:
Did I "win"? (whatever that means to them)
What will other think of this resolution?
Was the litigation worth it?
Can I settle now?
Should I settle now?
Should I end this?
If I settle, was I "right"? Was I vindicated?
Was I taken advantage of?
Did the other side "win"? Or get more/less than they deserve?
These questions, or variants, will rush across a party's mind close to resolving, causing them to pause. I have seen it flash across their faces when the matter is close to settling. Sometimes, I once had a litigant who delayed settling because he because, if he settled, his father would "blame him" for everything; if he went to trial, he could then blame the judge for why he was evicted from the property.
It takes time for the parties to process the conclusion of a dispute.
When I am in a mediation, I value time and am very cognizant of it. If I am in one room too long, I will excuse myself, even if there is more work left, in order to, assure the other side we are still working on this matter and would get back to him/her as soon as possible. Also, if I find one of the above issues are delaying the matter, I will address it directly. For example, if I am trading information in the morning, I may encourage a joint session to speed up the transfer of information.
Summary Of How To Prepare Your Client As To Timing Issues
Next time you are prepping your client for a mediation talk to your client about expectations as to time. Let your client know it will take longer than anyone thinks but also inform him of some of the reasons it is taking so long, such as:
Trading of information takes time;
Uncertainty by the parties takes time;
Parties' emotional reaction to offers/demands takes time;
Realizing the case may be over takes time.
Once your client knows why the mediation is taking so long, he or she may be more understanding and patient with the process.
WHAT NEXT?
I am a mediator in Fresno, California who mediates throughout California and beyond. I am available for all your mediation needs. You can reach me to schedule a mediation at:
PEEL | GARCIA
3585 W. Beechwood Ave., Suite 101
Fresno, California 93711
559-431-1300
--Troy
P.S.-Get a FREE printable PDF of our
TOP 5 NEGOTIATION TIPS-
Plus 5 more BONUS tips.
(Throw it in your briefcase to read while that mediator is in the other room and impress him when it's your turn to negotiate)
**This publication is provided as an educational service and is not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.